In a judgment published earlier this week (which can be downloaded from the panel opposite in pdf format), the First-tier Tribunal has called into question the meaning of the phrase ‘of a kind likely to cause
substantial damage or substantial distress’. The phrase is crucial where it is alleged that a breach of data protection legislation gives rise to the exercise by the ICO of its power to issue a monetary penalty notice.
In Christopher Niebel v The Information Commissioner (EA/2012/2060) the Tribunal cancelled a penalty notice requiring Niebel to pay £300,000 which had been imposed by the ICO where Niebel and his company, Tetrus, had been engaged in sending unwanted text messages on an industrial scale seeking claims relating to accidents and PPI mis-selling.
There was no dispute at the hearing about Niebel’s clear disregard for data protection legislation and clear breach of the PECR. The crucial point disputed before the tribunal was that the power to issue a MPN arose under the Data Protection Act 1998, s 55A only where the contravention was serious and ‘of a kind likely to cause substantial damage or substantial distress’ but the consideration of that issue was clouded by procedural confusion as to whether the Tribunal was to consider the impact of ‘hundreds of thousands’ of text messages or just the 286 specified in the relevant period covered by the contravention notice. (The Tribunal’s judgment also includes useful guidance on the content of a contravention notice.)
The Tribunal did not consider that the small charges likely to be incurred, albeit by a considerable number of people, amounted to substantial damage. Moreover, the suggestion that the messages caused ‘substantial distress’ was not accepted – mere irritation certainly but not ‘distress’:
28. The ICO suggests that recipients of the accident claim texts might become concerned for the safety of members of their family or be disturbed by being reminded of a previous accident. Having looked at the wording of the texts, we judge this to be highly unlikely. Almost all mobile phone users, in our judgement, will recognise these texts for what they are. We also regard it as highly unlikely that the texts would evoke distress by raising false expectations of compensation.
29. In our judgement the effect of the contravention is likely to be widespread irritation but not widespread distress. Given the scale of the contravention, there is the possibility of some distress in very unusual circumstances but we cannot construct a logical likelihood of substantial distress as a result of the contravention. We conclude that the contravention is not of a kind likely to cause substantial distress.
30. For these reasons, Section 55A(1)(b) is not satisfied. Given the path these proceedings have taken there seemed no purpose in considering whether other action might be appropriate. Our decision therefore is to cancel the penalty notice.
The phrase involving coach and horses springs to mind.
